Down the Rabbit Hole of the FCC's New Exemption for Healthcare Calls

“Alice laughed. ‘There’s no use trying,’ she said: ‘one can’t believe impossible things.’  

‘I daresay you haven’t had much practice,’ said the Queen. ‘When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast.”

 Lewis Carroll, Alice’s Adventures in Wonderland.

Having spent many hours both reading the FCC’s July 10, 2015, TCPA ruling[1], and, more enjoyably, a favorite childhood book, “Alice’s Adventures in Wonderland,[2]” I now think I’ve gone “down the rabbit hole” into the bizarre world of FCC Telephone Consumer Protection Act interpretation, and I’m not sure how to get out.

In the ruling, the FCC, in numbing length and obscurity, attempts to “clarify” the TCPA, but actually does nothing of the sort, and even appears to believe in impossible things like Alice’sQueen. 

One example -- and there are more -- is the HIPAA “exemption,” granted in response to a petition by the American Association of Healthcare Administrative Management (“AAHAM”) for healthcare calls to consumers’ cellular telephone numbers placed using an automatic telephone dialing system (“ATDS”) or prerecorded voice. AAHAM asked the FCC to clarify two issues relevant to calls from a healthcare provider to patients. These calls are “healthcare calls” and are extensively regulated by HIPAA.

AAHAM first requested the FCC clarify that, when an individual provides a telephone number to a healthcare provider, that action constitutes “prior express consent” for calls to that number by or on behalf of the healthcare provider or its business associates. 

The FCC agreed with this request and confirmed that a consumer who gives his or her number to a healthcare provider has given “prior express consent” for healthcare calls if the calls are within the scope of the consent given, and there are no instructions to the contrary (e.g. a “do-not-call” request, etc.)

Because some healthcare calls could be “telemarketing” as defined by the TCPA, this ruling is important, because the TCPA usually allows “telemarketing” calls to consumers’ cell phones only with prior express written signed consent (a much more rigorous standard than just giving a healthcare provider your number).

Then things get strange.

AAHAM asked about calls for which the patient had not provided express consent. It asked the FCC to exempt from the TCPA’s prior express consent requirement certain healthcare calls made to cell phones that are not charged to the called party. AAHAM argued that these calls “provide vital, time-sensitive information patients welcome, expect, and often rely on to make informed decisions ….”  Ruling, ¶ 143.

“Sure,” the FCC said. “We’ll allow regulated healthcare calls without prior express consent, but only if they meet all of these eight conditions.”

The FCC stated:

We grant the exemption, with the conditions below, but restrict it to calls for which there is exigency and that have a healthcare treatment purpose, specifically: appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions.

Id. at ¶ 146 (internal citations omitted).

The FCC then listed the conditions:

1) voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient;

etc…

Id. at ¶¶ 147-148 (emphasis added)[3].

But didn’t the FCC just say a patient gives a healthcare provider “prior express consent” for healthcare calls by giving his or her cell phone number?

I suppose you could argue that the “instructions to the contrary” part of “prior express consent” definition could mean there are some people who gave the provider their number but made instructions to the contrary regarding calling, but then the FCC would be saying a healthcare provider can call patients who gave their number in violation of the patients’ instructions to the contrary.

It therefore seems to me that the FCC’s ruling allows healthcare providers to call patients who have not provided “prior express consent” only if those patients have provided “prior express consent.”

That’s one impossible thing… when’s breakfast?

 

[1] In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, CG Docket No. 02-278 (July 10, 2015), available at https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order.

[2] Lewis Carroll, Alice’s Adventures in Wonderland, 166-67 (Bantam Books 1984) (1865), available at http://www.amazon.com/Adventures-Wonderland-Through-Looking-Glass-Classics/dp/0553213458/ref=reader_auth_dp.

[3] You can read the other seven conditions at https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order, ¶¶147-148.